GUIDE TO CISG ARTICLE 45

Secretariat Commentary (closest counterpart to an Official
Commentary)

Guide to the use of this commentary

The Secretariat Commentary is on the 1978 Draft of the
CISG, not the Official Text, which re-numbered most of the
articles of the 1978 Draft. The Secretariat Commentary on
article 41 of the 1978 Draft is quoted below with the
article references contained in this commentary conformed
to the numerical sequence of the Official Text, e.g.,
article 41 [draft counterpart of CISG article 45].

To the extent it is relevant to the Official Text, the
Secretariat Commentary on the 1978 Draft is perhaps the
most authoritative source one can cite. It is the closest
counterpart to an Official Commentary on the CISG. A
match-up of this article of the 1978 Draft with the
version adopted for the Official Text is necessary to
document the relevancy of the Secretariat Commentary on
this article. See the match-up for this article for
a validation of citations to this Secretariat Commentary.
This match-up indicates that article 41 of the 1978 Draft and CISG article 45 are
substantively identical.

Text of Secretariat Commentary on article 41 of the 1978 Draft[draft counterpart of CISG article 45] [Buyer's remedies in general; claim for damages; no period of grace]

PRIOR UNIFORM LAW

ULIS, articles 24, 41, 51, 52 and 55.

COMMENTARY

1. Article 41 [draft counterpart of CISG article 45]
serves both as an index to the remedies available to the buyer if
the seller fails to perform any of his obligations under the
contract and this Convention and as the source for the buyer's
right to claim damages.

2. Article 41(1)(a)[draft counterpart of CISG article 45(1)(a)]
provides that in case of the seller's breach, the buyer may
"exercise the rights provided in articles 42 to 48 [draft
counterpart of CISG articles 46 to 52]." The substantive
conditions under which those rights may be exercised are set
forth in the articles cited.

3. In addition, article 41(1)(b)[draft counterpart of CISG
article 45(1)(b)] provides that the buyer may "claim damages as
provided in articles 70 to 73 [draft counterpart of CISG articles
74 to 77]" "if the seller fails to perform any of his obligations
under the contract and [or] this Convention." In order to
claim damages it is not necessary to prove fault or a lack of good
faith or the breach of an express promise, as is true in some legal
systems. Damages are available for the loss resulting from any
objective failure by the seller to fulfill his obligations.
Articles 70 to 73[draft counterpart of CISG articles 74 to 77],
to which article 41(1)(b)[draft counterpart of CISG article
45(1)(b)] refers, do not provide the substantive conditions
as to whether the claim for damages can be exercised but the rules
for the calculation of the amount of damages.

["The relevance of fault is minimized in ... the Convention." Jan Hellner, "The UN
Convention on International Sale of Goods -- an Outsider's View", Ius Inter Nationes:
Festschrift fur Stefan A. Riesenfeld, Jayme, Kegel & Lutter eds., C.F. Muller Juristischer
Verlag: Heidelberg (1983), p. 81. "By making damages independent of fault, the
Convention follows the common law rather than the civil law tradition." Michael R.Will,
Bianca-Bonell Commentary, Milan: Giuffrè (1987) p. 331. "Not only is fault not a
prerequisite for liability to pay damages but liability for non-conformity of the goods
never depends on the fault of the seller, ... the buyer's right to avoid the contract when he
cannot return the goods does not depend on fault. ... etc." Hellner, op. cit. at 81-82. And
Treitel points out: "Fault is not mentioned in [the Convention] as a requirement of any
remedy, whether for nonpayment, nondelivery of generic goods, or defects in goods; nor,
so far as such defects are concerned, [does the Convention] follow civil law systems in
distinguishing between liability for breach of contract and 'guarantee' liability. In all
these respects the [Convention] more closely resemble[s] common than civil law systems.
..." G.H. Treitel, "Remedies for Breach of Contract", Oxford: Clarendon Press (1988),
pp. 23-24).]

[A further similarity with the common law approach has to do with the general
availability of damages as a remedy. Treitel states "In common law jurisdictions,
[substitutionary relief in money] is always available, 'damages' being the primary
remedy for breach of contract. In civil law countries the availability of damages for
nonperformance ... as opposed to specific enforcement is sometimes said to be
circumscribed ... but the limits to its scope are of more theoretical than practical
importance. ... [T]he Vienna Convention . . . follow[s] the common law approach, making
damages available as of right in all cases. ..." Id. at 75.]

4. A number of important advantages flow from the adoption of
a single consolidated set of remedial provisions for breach of
contract by the seller. First, all of the seller's obligations
are brought together in one place without the confusion generated
by the complexities of repetitive remedial provisions. This makes
it easier to understand what the seller must do, that which is of
prime interest to merchants. Second, problems of classification
are reduced with a single set of remedies. Third, the need for
complex cross-referencing is lessened.

5. Paragraph (2) provides that a party who resorts to any
remedy available to him under the contract or this Convention is
not thereby deprived of the right to claim any damages which he
may have incurred.

["Art. 45(2) rejects the notion that the buyer is forced to elect between claiming damages and exercising the other remedies conferred on him under the Convention, viz. specific performance and avoidance. The common law position is the same and, in particular, it is basic law that a buyer who rejects non-conforming goods or cancels the contract on some other ground is not thereby deprived of his entitlement to damages." Jacob Ziegel, "Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods (July 1981), p. 104. See also UCC-2-720 which states: "Unless the contrary intention clearly appears, expressions of 'cancellation' or 'recission' of the contract or the like shall not be construed as a renunciation or discharge of any claim in damages for an antecedent breach".]

6. Paragraph (3) provides that if a buyer resorts to a remedy
for breach of contract, no court or arbitral tribunal may delay the
exercise of that remedy by granting a period of grace either before,
at the same time as, or after the buyer has resorted to the remedy.
The reasons for this provision are discussed in paragraphs 3-5 of
the commentary to article 43[draft counterpart of CISG article
47]. Such provision seems desirable in international trade
(OFFICIAL RECORDS, pp. 37-38).

[Paragraph (3) of Article 45 is said to to be especially relevant in France where there are
rules allowing a délai de grace. John O. Honnold, "Uniform Law for International sales
under the 1980 United Nations Convention, 2d ed., Kluwer Law International (1991) p.
298. Enderlein & Maskow state that paragraph (3) of Article 45 does not refer "to each
and every remedy to which a buyer will resort in the event of a breach of contract by the
seller, but only to the right to make a contract void (Article 49)." Fritz Enderlein &
Dietrich Maskow, "International Sales Law", Oceana (1992), p. 176. Will also refers to
avoidance as "the sole remedy to which [paragraph (3)] belongs." Michael R. Will,
Bianca-Bonell Commentary, p. 332.]